The defenders of George II say he has, and always has had, the power to conduct warrantless eavesdropping on American citizens during “time of war.” They cite court opinions to that effect. His critics downplay the court opinions and say he has violated the law and the Constitution. It seems pretty clear that the president will get away with it. Thus the words of Lysander Spooner in No Treason come to mind:
But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
Postscript: One legal scholar and Bush critic who puts the past court rulings in context and shows how the president has violated the law is Robert Levy of the Cato Institute. Here is an interesting exchange between Levy and a Bush defender (pdf).
Hat tip: Will Wilkinson.